68 W. Va. 762 | W. Va. | 1911
In a suit in assumpsit against the railway company plaintiff sought to recover the purchase price of certain timber on a tract of thirty-five acres in Raleigh county, sold by contract in writing, dated February 3, 1904. The defendant appeared, and pursuant to section 1, chapter 107, Code 1906, filed its affidavit, admitting the correctness of the amount sued for under said contract, but affirming that said timber and the purchase money therefor were claimed by H. H. Harper, the plaintiff in error; that it was not colluding with said Harper, and was ready--to pay or dispose of the sum due, $252.76, as the court might direct. Wjhereupon, on April 5, 1905, as provided by said statute, the court made an order requiring Harper to appear on the first day of the next term and state the nature of his claim, and maintain or relinquish the same, and stayed all further proceedings until that term, and directed that a copy of the order be served on Harper.
Harper appeared as required, and filed his answer denying plaintiff’s right and right of action against the railway company, and asserting right and title in himself to said land and the timber thereon. He alleges that long prior to the time plaintiff obtained his claim of title from Azel Ford, he acquired title thereto from T. J. McGinnis, by deed dated December 12, 1900; and which deed he proffers with his answer. He also avers that he sold to defendant company the said timber, bycontract in writing, dated May 25, 1903, exhibiting said contract also with his answer. The prayer of his petition is that he be made a party defendant, and allowed to prove his claim against said company, and that said company be required to pay the money sued for to him as rightfully entitled thereto.
On the trial of this issue the jury were sworn to well and truly try the issue joined between plaintiff, Milton Curtis, and the defendant, Henry H. Harper, and a true verdict render according to the evidence. After hearing all the evidence adduced by both parties, the jury found for plaintiff Curtis on the issue joined, and that the railway company pay Curtis the sum sued for and so claimed by Harper.
Curtis introduced in evidence many deeds and other muni-ments of title, which he claimed carried him back by an unbroken chain to a patent from the Commonwealth of Virginia to De Witt Clinton^ for 130,000 acres, dated February 17, 1796. Among them is the record of a judgment in ejectment, of the District Court of the United States, for the District of West Virginia, at Charleston, in which Mindwell P. Granger, Executrix, and others, are plaintiffs, and Henry M. Riffe, said H. H. Harper, and others, are defendants. That judgment pronounced September 33, 1871, among other things recites that on that day the defendants, naming them, including said Harper, b}1" S. A. Miller, their attorney, withdrew their pleas theretofore entered and consented that plaintiffs should have judgment for the land in controvers3r, and that judgment was that plaintiffs recover of said defendants the tract of land sued for, and that they have a writ of possession therefor, but, by consent of parties, Without costs as to said defendants.
The immediate deed to Curtis, offered in evidence, and relied on, is from Azel Ford and wife, dated June 39, 1903, describing the land b3^ metes and bounds as containing thirty acres. The next prior -paper in the chain of title is a deed from the widow and devisees of Francis Granger, deceased, and the widow and heirs at law of Gideon Granger, deceased, and others, dated January 33, 1888, to the said Azel Ford. These two deeds, therefore, connect plaintiff directly with the judgment in ejectment of said Grangers against said Harper and others. This
(Defendant Harper on the trial offered no evidence of paper title, not even his deed from McGinnis, of December 12, 1900, to which, in his petition, he referred his claim of fight and title to the timber sued for. But as a matter of precaution plaintiff at the close of his evidence offered this deed in evidence, and also the contract of Harper with J. H. Dillard, of May 25, 1903, purporting to sell to Dillard, representing said railway company, the said timber. The only evidence offered by Harper was the opal evidence of himself and three or four other witnesses, on the subject of possession. So far as the evidence of the witnesses other than himself was concerned it related to acts of trespass, at his suggestion, subsequent to the bringing of this suit. In his evidence he refers his claim.of title not to his alleged deed from McGinnis. After saying that he claimed the laud, he testified as follows: “Q. How long have you'had possession? A. I don’t know; I claimed (past tense) that I have had possession of twenty four years. I got that from Daniel Harper in 1881.” Who Daniel Harper was, is not shown; nor is it shown how the witness claimed under Daniel Harper, whether by deed or otherwise; nor when or how his claim originated.
In their petition for a writ of error, counsel for Harper assign numerous errors, but in their original brief filed here they argued but two, which they regarded decisive, apparently abandoning all others. In a supplemental brief, however, filed on the hearing, after counsel for plaintiff had filed their brief, they discuss briefly some, if not all, their original points, and assign some new ones. Counsel for plaintiff, in their brief, anticipating the supplemental brief, and fearing also,that this Court, as they say, courts sometimes do, "in order to keep busy” might “go outside the claims of counsel”, discuss a.ll points of error covered by the petition for the writ of error. We may be pardoned for saying in reply to the suggestion that we are always very glad to confine ourselves to .the points covered by the claims
The first point made in the original brief of defendants’ counsel is that assumpsit will not lie. They rely on Parks v. Morris, Layfield & Co., 63 W. Va. 51, 59 S. E. 753. This case does not support their contentions. Quite the contrary. That case simply holds that in the absence of contract between the parties, if the title to the land be in dispute, assumpsit will not lie for the value of timber cut and taken from the land. In that case the title was in dispute, and Parks had no contract, and proved none. In the case at bar plaintiff has a contract in writing with the railroad company, fully executed on his part, and assumpsit was the proper, if not his only remedy. So there is no merit in this point.
The second point is that plaintiff failed to connect himself in title with the Commonwealth, in that the grant to De Witt Clinton, of February 17, 1796, is not under the Lesser Seal of the Commonwealth. For this proposition Jarrett v. Stevens, 36 W. Va. 445, point two of the syllabus, is relied on. On this proposition counsel for plaintiff cite and rely on Virginia Coal & Iron, Co. v. Keystone Coal & Iron Co., 101 Va. 723, and cases therein cited, approved in Howdashell v. Krenning, 103 Va. 30; Robinson v. Dewhurst, 15 C. C. A. 470-1. In accord with the latter cases we find Aycock v. Railroad Co., 89 N. C. 321; Strain v. Fitzgerald, 128 N. C. 396, both citing numerous other cases on the subject. But we' have concluded we' need not, and should not decide this question; that it does not properly or fairly arise on the record, for the reason that as to the parties to this suit, defendant is estopped and concluded by said judg-
But a new point made and argued is that Harper was an infant, and that the judgment in ejectment does not bind or conclude him; that no guardian ad litem was appointed, and that he did not defend by guardian ad litem. Harper was not sued as an infant, and the only ground for affirming his infancy, is that the record shows a’ memorandum, apparently made on the back of the declaration and immediately following the return of service by the officer, neither signed nor authenticated by any person,
Another point made in the supplemental brief for Harper, not assigned as error in his petition, nor covered by the brief of plaintiffs counsel, is that plaintiff has failed to connect himself by legal proof of pedigree, with the plaintiffs in said ejectment suit. In the deed from Robert C. AYinthrop, and others, to Azel Ford, of January 23, 1888, the fact that some of said grantors arc devisees and heirs, connecting them with plaintiffs in said suit is fully recited, but it is claimed that such recitals in a deed of that late, date is not sufficient to establish the facts recited. This might present a troublesome. question in' an ejectment suit, with defendants in possession. Webb v. Ritter, 60 W. Va. 193, 232, and cases cited, among them Wilson v. Braden, 56 W. Va. 372. This is not ejectment, and there is no substantial proof of possession by Harper; only occasional acts of trespass, most of them since suit brought. The- action here is assumpsit, on a contract, by plaintiff against the railroad company. Harper is only an interpleader, setting up claim of right to the money due, in opposition to that of plaintiff. He shows no title or right. The defendant eompanjr has raised no question of title, except as to Harper’s claim, and we do not think Harper
'■So far as we can see there is no reversible error in the judgment below and it should be affirmed.
Affirmed.